In Cowles v. Balac, released November 4, 2004, Justice MacFarland of the Ontario Court deals with a problem that we have encountered from time to time: an investigator making direct contact with a plaintiff who is represented by counsel.
The reasons can be viewed at:
http://www.canlii.org/on/cas/onsc/2004/2004onsc12506.html.
The case is an unusual one, to begin with, in that it arises out of an attack by a tiger which appears to have occurred here in Ontario.
The judgment deals with several issues, including the striking of a jury notice. The portion of the reasons that relate to the investigator begin at paragraph 35. As you will see, an investigator hired by counsel for one of the defendants undertook surveillance on the plaintiff and, in the course of so doing, actually spoke with the plaintiff.
Because of this direct contact, the judge refused to admit any evidence from the investigation. Although there was no evidence that the lawyer who had hired the investigator knew or had countenanced the investigator speaking with the plaintiff, MacFarland J. considered the investigator to be an agent of the lawyer who had hired him. Reference was made to the Rules of Professional Conduct and the court concluded as follows:
[40] Whether the approach is by the lawyer him or himself or an investigator retained by the lawyer it is equally improper and the lawyer bears the responsibility for those to whom he delegates tasks.
[41] It is the lawyer’s responsibility to insure that those to whom tasks are delegated are aware of the rules and to educate them when they are not.
[42] The approach was improper. Any evidence obtained by the investigator and any other evidence obtained as the result or consequence of such information will be excluded from the trial proceeding.
Unfortunately, this message does not seem to be clear to many private investigators. We often receive surveillance as part of a file from an insurer and it is not unusual to see from the accompanying report, that an investigator has made a “pretext phone call” to the plaintiff or even worse, has gone right up to the door of the plaintiff’s home and spoken with him or her.
We have also, on many occasions, cautioned investigators about direct contact. Some are aware that it is forbidden, but many are not.
This sort of conduct is simply not allowed where the plaintiff is represented by counsel. The ruling by Justice MacFarland is exactly what is likely to occur if a court learns of such an impropriety having taken place.
So, even if an insurer has not yet retained counsel, it should caution any investigator whom it retains, that there must be no direct contact between the investigator and the plaintiff.